Justice Department officials said yesterday that President Carter and Attorney General Griffin B. Bell have been cleared of intimations that they obstructed justice in their removal of David W. Marston, the U.S. attorney in Philadelphia.
Wade H. McCree, the solicitor general, and Michael E. Shaheen Jr., head of the department's Office of Professional Responsibility, said that an internal investigation based on sworn statements of a dozen officials showed that neither Carter nor Bell was aware of a possible investigation of Rep. Joshua Eilberg (D-Pa.) when the congressman called the president in early November and asked him to "expedite" Marston's replacement.
But the material released yesterday also points to another apparent inconsistency in Carter's previous explanation of his involvement in the case.
In his letter to Shaheen, for example, Carter stated that he didn't learn Eilberg "was of investigative interest" to the Justice Department until congressional liaison Frank Moore told him "a few minutes before" his Jan. 12 news conference.
At the news conference, he said that "as far as any investigation of members of Congress, however, I am not familiar with that at all and it was never mentioned to me."
The briefing for reporters by McCree and Shaheen also left gaps in the explanation of the controversial issue.
Shaheen said that he had not questioned some of the persons involved, including Moore and Eilberg, because they were outside the scope of his narrow inquiry.
And he declined a release the affidavits of two key Justice Department officials, Criminal Division chief Benjamin R. Civiletti and a top aide, Russell T. Baker Jr., who have different recollections about when they learned of a possible Eilberg investigation.
Marston, a Republican who has been given credit for aggressively prosecuting Democratic officials in Pennsylvania, was ousted from his job after a showdown meeting with Bell last Friday. He has said that he told Baker about the investigation involving Eilberg in mid-November, shortly after being told by Michael J. Egan, a top Bell associate, that he had to be replaced because of pressure from Eilberg.
Marston's removal has become a major political problem for the Carter administration because of the circumstances surrounding Eilberg's call to the president.
Shaheen said yesterday that he would continue to try to resolve the apparent conflicts between Baker and Civiletti about what happened to the information Marston passed on about Eilberg.
And he strongly implied that the department's Criminal Division would conduct a separate investigation of whether Eilberg knew he was under investigation when he called the president, and thus might have been guilty of obstruction of justice himself.
But the incomplete explanation of the situation yesterday seemed sure to keep the controversy alive. Marston, for instance, responded quickly from Philadelphia that he thought any investigation of the events triggered by Eilberg's phone call deserved grand jury attention rather than the "informal, short-cut procedure" of the series of affidavits.
Marston told reporters that the process of using affidavits, which don't require the signer to undergo questioning, could "jeopardize a criminal case" if one were to be brought.
Marston is scheduled to be a luncheon speaker at the National Press Club today.
Bell said in his affidavit released yesterday that he was not aware of even the possibility of an Eilberg investigation until Jan. 10, the day he addressed the National Press Club lucheon and fielded a question about Marston's imminent removal.
Shaheen said he also took affidavits from Bell's special assistants, Egan and Marston, as well as Civiletti and Baker. He could not release them because some mentioned grand jury material or other matters protected from disclosure, he said.
Sources familiar with the case, however, said yesterday that the other affidavits show that Marston did not tell Baker in mid-November he had evidence to back up his contention that Eilberg might be involved in a criminal investigation.
The allegations focus on more than $400,000 in legal fees which Eilberg's law firm received from a Philadelphia hospital that was seeking federal and state funds for a $65 million addition.
An active FBI file on the hospital investigation was not opened until late October, one official said yesterday, though the public corruption unit in Marston's office had reports of possible fraud in the hospital addition as early as last July.
Rep. Daniel J. Flood (D-Pa.), the powerful chairman of the Labor-HEW Appropriations subcommittee, was considered a more likely target because of his role in securing federal funds for the hospital addition, sources said. Flood has declined to comment.
On Nov. 4, the same day Eilberg called the president to "expedite" Marston's dismissal, a Justice Department organized crime strike force in Washington got a grant of immunity to compel testimony from Steven B. Elko, Flood's former administrative aide.
While the immunity authorization outlined possible evidence Elko could provide it did not contain references to Eilberg or the hospital, one knowledgeable source said.
It wasn't until mid-December, more than a month after Marston mentioned Eilberg's possible complicity in the investigation, that Elko began providing information that could be used as evidence, sources said.
Eilberg has said he thought he was probably under investigation by mid-December, when his law firm's records were subponead.
Baker said in his affidavit that he told Civiletti, his superior, about his talk with Marston about Eilberg's possible involvement in some "transaction" under investigation in Philadelphia, according to sources. He recalls that Civiletti told him to pass on the information to Egan, but he forgot to do so because the case didn't seem significant at the time.
Civiletti said yesterday that his affidavit said he did not remember having such a conversation with Baker:
Meanwhile, in Philadelphia, Robert N. DeLuca, a Republican assistant in Marston's office, was named as a temporary replacement for his ousted boss.